HomeMy WebLinkAbout1996-0836.Irwin.99-01-19 DecisionEMPLOYes DE LA
D15
COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS street west suite 600 TORONTO ON M5G 1z8
180. RUE dundas OUES7; TORONTO (OM M5G 1z8
(416) 326-1388
(416) 326-1396
GSB # 0836196
OPSEU 96B853
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Robert Irwin)
- and -
The Crown in Right of Ontario
(Ministry of Natural Resources)
BEFORE Ken Petryshen Vice-Chair
FOR THE Peggy E. Smith
GRIEVOR Counsel, Eliot, Smith
Barristers & Solicitors
FOR THE Lucy Siraco
EMPLOYER Counsel, Legal Services Branch
Management
Board Secretariat
Grievor
Employer
HEARING November 17, 1998
DECISION
In a grievance dated May 28, 1996, Mr. Robert Irwin claims that the Employer
contravened the Collective Agreement and a Memorandum of Settlement dated March
26, 1993 (“the Memorandum”), by assigning Mr. Irwin an incorrect Continuous Service
Date
(“CSD’), Mr, Irwin’s grievance was addressed in the Ministry of Natural Resources
backlog grievance process. The attempt to resolve the grievance at mediation was
unsuccesful. An interested party was served notice of the hearing and did appear. There
was no challenge to the Grievance Settlement Board’s (“the Board’s’’) jurisdiction to hear
and determine this grievance.
The Union claimed that the correct date for determining Mr. Irwin’s CSD is June
13, 1991. The Employer, on the other hand, asserted that the appropriate date is March
29, 1993. The parties requested that I determine which one of these two dates is the
correct date for the purpose of determining Mr. Irwin’s CSD and that I remain seized of
the grievance in the event the parties were unable to resolve other issues.
Mr. Irwin worked as a seasonal employee under various contracts at the
Haliburton-Hastings Fisheries Assessment Unit commencing in 1981. In a grievance
dated October 30, 1990, the Union grieved that the Ministry was “improperly treating a
number of year-round positions as seasonal positions”. The Ministry and the Union
settled that grievance by executing a settlement document dated June 13, 199 1,
I
2
commonly referred to as the Roll-Over Agreement, the relevant paragraphs of which state
as follows:
2.
weeks or longer duration, provided they have completed at least two seasons of
employment as a seasonal unclassified employee, or have been incumbent in the
position for the last
52 weeks of active employment, to the classified civil service
effective the date
of this settlement.
The Ministry shall appoint all of the current incumbents of positions of 43
6.
representatives to a joint committee to resolve anomalies flowing from this
settlement where the duration of the position or tenure of the incumbent is unclear
or in dispute. The parties further agree that there shall be full disclosure of all
relevant information to facilitate this committee’s operation.
The Ministry and the Union agree to appoint an equal number of
8.
weeks or more duration followed by nine or less weeks inactive employment in
any twelve-month period. The Union agrees that the positions below 43 weeks per
year are properly characterized as seasonal in nature.
The Ministry agrees that seasonal unclassified positions shall not be of 43
9.
provisions of this settlement shall apply. However, the parties may agree mutually
to alternative remedies.
In the event that the Ministry does not adhere to paragraph 8 above, the
The parties subsequently disagreed over the interpretation of paragraph 2 of the
Roll-Over Agreement. The Ministry took the position that the 43-week position must
comprise consecutive weeks encompassing June 13, 199 1, whereas the Union held the
view that it was sufficient if an incumbent held a position for 43 weeks or longer in a 52-
week period which included June 13, 1991. In a decision dated February 25, 1993, the
Board determined that it preferred the Union’s interpretation of paragraph 2. See OPSEU
and Ministry of Natural Resources 21 81/90 (Barrett). At page 7 the decision states:
Thus we conclude that a fair and reasonable interpretation of the
Memorandum, in accordance with its purpose and intent, is to provide that
all incumbents of a 43 out
of 52-week position, who alone have held the
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position during the year preceding or encompassing the settlement, should
have the benefit of paragraph 2 of the Memorandum.
The Roll-Over Agreement essentially defines two circumstances in which
seasonal employees can be “rolled over” from the unclassified to the classified service. If
an unclassified employee as of June 13, 1991 meets the conditions in paragaraph 2, the
employee will be appointed to the classified service effective June 13, 1991. Given the
interpretation of paragraph 2 in decision 218 1/90, it is sufficient that the incumbent
occupy the position for at least 43 out
of a 52-week period as of June 13, 1991.
Paragraphs 8 and 9 of the Roll-Over Agreement deal with situations subsequent to June
13, 1991,
In paragraph 8, the Ministry agrees that seasonal unclassified positions shall not
be 43 weeks or more in duration in any 12-month period. If the Ministry does not adhere
to paragraph 8, “the provisions of the settlement apply” and paragraph 9 goes on to
provide that the parties may agree mutually
to alternative remedies.
Paragraph
6 of the Roll-Over Agreement provides for the creation of an anomalies
committee to deal with disputes concerning the duration of the position or tenure of the
incumbent.
Mr. Irwin was not identified as someone for the anomalies committee to deal
with.
It is unnecessary to review all of Mr. Irwin’s classified employment history.
Suffice it to say that Mr. Irwin had seasonal contracts as an Assessment Unit Technician
in the
RT-2 classification covering the periods April 29, 199 l-November 1, 199 1, May 1,
1992-October 30, 1992 and November 24, 1992-March 5, 1993. Mr. Irwin was not
4
recalled to perform an Assessment Unit project between January 5, 1992-April30, 1992.
On January 17, 1992, he grieved the Employer’s decision not to recall him. The parties
settled the grievance by executing the Memorandum dated March 26, 1993. The
substance
of that Memorandum reads as follows:
Memorandum of Settlement
The parties agree to the following terms as full and final settlement of the
above-noted grievance dated
January 17,1992, without precedent and
without prejudice to this or any other matter.
1. The Ministry and the Union agree that in accordance with paragraphs 8 and 9
of the Memorandum of Settlement, GSB #218 1/90, the Grievor shall be
appointed to the classified service and under Article 24 of the Collective
Agreement shall be assigned to the position of Fisheries Assessment Unit
Technician, classified at the
RT-2 level effective March 29, 1993. The
position
is presently located at the Haliburton-Hastings Fisheries Assessment
Unit.
2. The Union and Grievor hereby withdraw the above-noted grievance and
releases the Ministry from all other claims related to the unclassified
employment of Mr. Irwin, his appointment to the classified service and from
the events giving rise to this grievance.
Shortly after he commenced employment
in the classified service, Mr. Irwin
received a series of three seasonal conversion sheets from the Employer. All three were
prepared by a core-pay clerk, with the final one verified by a supervisor. The first sheet
based the CSD on the date
of March 29, 1993. After Mr. Irwin advised the Employer that
this date was incorrect, a second conversion sheet was prepared counting backwards from
June 13, 1991. Since Mr. Irwin was not satisfied with the hours used to arrive at the CSD,
a third conversion sheet was prepared. The third and final conversion sheet, the one
verified by the supervisor, also used the date of June 13, 1991, and arrived at a CSD
acceptable to Mr. Irwin. Given that he achieved his objective, Mr. Irwin withdrew an
5
application he had made to the anornolies committee and did not identify himself as a
person affected by decision 21 81/90. Mr. Irwin filed his grievance when a seniority list
posted in the Spring of 1996 disclosed a different CSD.
The two Union witnesses, Mr. Irwin and his wife, an officer of the Local Union,
gave evidence of their intention and their discussions with Union counsel when
negotiating the Memorandum which resulted in Mr. Irwin becoming a classified
employee.
I did not find this testimony to be of any assistance. Evidence of intention of
one party to an agreement cannot influence the interpretation of the Memorandum. In any
event, as I noted at the hearing, the Memorandum is not ambiguous and must be
interpreted on the basis of its language alone.
The Union submitted that the effect of the Memorandum was to recognize that
Mr. Irwin should have been recalled to work between January 5, 1992 and April 30, 1992,
with the result that his circumstances fell within those addressed by the Roll-Over
Agreement. Accordingly, it was argued that the appropriate date is June 13, 199 1. In the
alternative, the Union argued that the Employer is estopped from advancing its position
having regard to the representation it made on the third conversion sheet that June
13,
199 1 was the correct date. The Union argued that Mr. Irwin relied on this representation
to his detriment because he then withdrew
his application to the anomolies committee
and did not find it necessary to advise the Union that he was affected by decision
2181/90.
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The Employer argued that the correct date is March 29, 1993, the date Mr.
Irwin was appointed to the classified service. In its view, Mr. Irwin did not meet the
conditions of paragraph 2 of the Roll-Over Agreement which is the only way to obtain
the June 13, 1991 date. The Employer also argued that the circumstances here do not
support an estoppel.
The Employer
is essentially correct in its position that the answer to this
dispute can be found in the Memorandum which settled Mr. Irwin’s recall grievance. In
that Memorandum, the parties agreed that Mr. Irwin shall be appointed to the classified
service effective March 29, 1993, in accordance with paragraphs 8 and 9 of the Roll-Over
Agreement. If the parties were of the view that
Mr. Irwin’s circumstances met the
conditions of paragraph 2 of the Roil-over Agreement, the provision which clearly
provides for the June 13, 1991 date, they could have easily worded the Memorandum to
reflect this view. Probably because
Mr. Irwin did not met the 43-week out of 52-week
test as of June 13, 1991, the parties recognized that Mr. Irwin’s circumstances fell within
those addressed by paragraph 8. Assuming his recall grievance succeeded, Mr. Irwin did
not occupy a seasonal unclassified position for at least 43 weeks in a 52-week period
until 1992.
As noted earlier, paragraph 9 provides that the Roll-Over Agreement shall apply
in the event that the Ministry does not adhere to paragraph 8. I agree with the Employer’s
submission that the parties could
not have intended that a seasonal employee appointed to
the classified service as a result of the Employer’s failure to adhere to paragraph 8 would
7
obtain an appointment date of June 13, 1991. The parties did not specifically provide in
paragraph 9 that the appointment date in such circumstances would be June 13, 1991, as
they did in paragraph 2. In addition, it is unlikely that the parties would have intended
that a seasonal employee hired after June 13, 1991 would obtain a June 13, 1991
appointment date if the Employer did not adhere to paragraph
8. The inapplicability of
paragraph 2, as recognized by the parties, and the above interpretation of paragraph 9
compel me to the conclusion that the correct date to use as a basis for determining Mr.
Irwin’s CSD is March 29, 1993. The parties agreed in the Memorandum that Mr. Irwin
would begin his classified service as
of March 29, 1993, and without the benefit of a
deemed appointment date
from the Roll-Over Agreement, it is this date that must be used
to calulate Mr. Irwin’s CSD.
The facts in this case do not establish an estoppel. Although the Employer did
represent in the final seasonal conversion sheet that the correct date was June 13, 1991,
the evidence does not establish that
Mr. Irwin relied on this representation to his
detriment.
As a result of the representation Mr. Irwin did not pursue his application to the
anornolies committee and did not pursue the matter after decision
2 18 1/90 was issued.
All he lost was the opportunity to pursue the issue further. Given the facts
and my
interpretation of the Roll-Over Agreement, it is unlikely Mr. Irwin would have succeeded
in obtaining the June 13, 1991, date from the anornolies committee or from any other
forum. In my view, it has not been established that the missed opportunities to advance
the issue because
of the Employer’s representation caused Mr. Irwin any true detriment.
8
Before concluding, it is worth noting that if the correct date had been June 13,
199 1, the hours worked on the relevant contracts prior to that date would be used for
calculating the CSD. In other words, hours worked on relevant contracts after June 13,
199 1 would be irrelevant.
For the foregoing reasons, I declare that the correct date to use as a basis for
determining Mr. Irwin’s CSD is March 29, 1993. Further to the parties’ request, I will
remain seized of the grievance should the parties be unable to resolve any remaining
issues in dispute.
Dated at Toronto,
this 1 9th day of January, 1999.
Ken Petryshen : Vice-Chair